SUBJECT:

Amy B. Wisby, a/k/a Amy B. Leever, a/k/a

Amy B. Zoellner,

Petitioner,

The Inspector General

I. Because Petitioner did not timely file her hearing request, I have no alternative but to dismiss it pursuant to 42 C.F.R. § 1005.2(e)(1). ⁽¹⁾

In a letter dated April 29, 2005, the Inspector General (I.G.) advised Petitioner that she was excluded from participation in Medicare, Medicaid, and all federal health care programs for a period of five years because of her felony conviction in an Ohio State Court of a criminal offense related to the unlawful manufacture, distribution, prescription, or dispensing of a controlled substance. Attached to the letter is a one page statement of additional information, which includes notice of Petitioner's right to request a hearing before an administrative law judge (ALJ) and says that such request "must be made in writing within 60 days of your receiving" the exclusion letter. I.G. Exhibit (Ex.) 2, at 8. ⁽²⁾

Petitioner filed her hearing request on August 10, 2005, about a month after the filing deadline had passed. The I.G. has moved to dismiss the hearing request because it is untimely. ⁽³⁾

The regulations that govern these proceedings grant me virtually no discretion. An aggrieved party must request a hearing within sixty days after receiving the notice of exclusion. 42 C.F.R. §§ 1001.2007(b); 1005.2(c). Petitioner is presumed to have received the notice five days after its date "unless there is a reasonable showing to the contrary." 42 C.F.R. § 1005.2(c). Petitioner has not claimed that she did not receive the notice in timely fashion. The regulations specify that the ALJ "will dismiss" where a petitioner's hearing request is not timely filed. 42 C.F.R. § 1005.2(e)(1). I understand "will dismiss" to be inflexible - it affords me no discretion to waive a late filing or to grant an extension of time in which to file. See, Sharon Anderson, D.P.M., DAB CR793, at 3, aff'd, DAB No. 1795 (2001).  

Petitioner asserts that the I.G.'s motion to dismiss was itself untimely, suggesting that the I.G.'s untimeliness would justify my considering her appeal. In an order dated October 27, 2005, I directed the I.G. to submit its motion to dismiss and accompanying brief within ten days from the date of the order. The I.G.'s submission is post-marked November 7, 2005. Even if I found the submission untimely, that finding would not affect an unambiguous regulatory requirement that I dismiss any hearing request not timely filed. Moreover, because the tenth day from October 27, 2005, fell on Sunday, November 6, 2005, a November 7 submission complies with my order. See 42 C.F.R. § 1005.12.

Petitioner also complains, with some justification, that the I.G. bases her five-year exclusion on a January 2000 conviction. I agree that an unexplained five-year delay in these circumstances is particularly troublesome. Again, however, even such an apparent inequity does not affect the unambiguous regulatory requirement that I dismiss any hearing request not timely filed. Further, I have no authority to change the effective date of Petitioner's exclusion, no matter how egregious the delay. As a matter of law, an exclusion must become effective 20 days from the date of the I.G.'s notice of exclusion. 42 C.F.R. § 1001.2002. An ALJ has no authority to review the timing of the I.G.'s determination to impose an exclusion or to alter retroactively the date of the imposition of the exclusion. Tanya A. Chuoke, DAB No. 1721 (2000); Samuel W. Chang, M.D., DAB No. 1198 (1990); Susan Malady, R.N., DAB CR835 (2001), aff'd on other grounds, DAB No. 1816 (2002); Larry B. Shuster, R.Ph, DAB CR872 (2002); Kathleen E. Talbot, DAB CR772 (2001).

Carolyn Cozad Hughes

Administrative Law Judge

1. I make this one finding of fact/conclusion of law.

2. That actual notice is found in the eighth paragraph of the one-page attachment. The font is extremely small, and the notice of appeal rights is inconspicuous. Given the size and context of this notice, a n individual might well assert that she was unaware of the filing deadlines, and argue good cause exists for extending the time for filing. However, as discussed below, the regulations governing these proceedings simply do not allow the ALJ to extend the time for filing based on a finding of good cause. Moreover, here, Petitioner does not claim that she was unaware of her appeal rights.

3. The I.G. has submitted four exhibits (I.G. Exs. 1-4). Petitioner re-submitted the I.G. exhibits, along with what appears to be a photocopy of the envelope in which it was mailed, as well as a photocopy of the postmark (which for some reason is on a separate page). I have marked these two pages P. Ex. 1. In the absence of objection, I admit I.G. Exs. 1-4 and P. Ex. 1.